The leaked draft of a Supreme Court decision to overrule Roe v. Wade has created all sorts of shock waves. It announces the greatest setback for reproductive rights in more than a generation, profoundly affecting women across our land. It would bless laws like the Mississippi one at issue in the case, which restricts abortion to the first 15 weeks of pregnancy and includes no rape or incest exception. It would even bless flat bans on abortion. Perhaps the only comfort one can take in this draft opinion is that it is a draft, meaning there is a chance that things might change before the official decision. But the odds of that are probably low, and this opinion, should it become law, would profoundly alter the rights Americans hold dear, and not just on abortion. Rights to marriage equality, contraception and much more are now at risk.
The draft opinion is the fruit of a decades-long campaign by conservative legal activists. In fact, it reads as if it were written by the conservative judge and failed 1987 Supreme Court nominee Robert Bork. The reasoning in Roe v. Wade — decided 7 to 2, and written by Republican-appointed Justice Harry Blackmun, who was joined by four other Republican appointees to the court — was grounded in the right to privacy. That right, in turn, was first articulated by the court in a 1965 decision, Griswold v. Connecticut, which struck down a Connecticut law that banned the sale of birth control to married couples. Bork had railed against the right to privacy, calling Griswold “unprincipled” and Roe “an unconstitutional decision, a … wholly unjustifiable judicial usurpation of state legislative authority.”
Such views led to his undoing in the Senate confirmation process. But Bork’s ghost lives on in this draft, showing that conservatives did not tack away from his extreme views but were simply biding their time until they had the votes to act on his vision. The draft attacks Roe as “egregiously wrong” and says, in words that Bork very well might have written, that the right to abortion lacks a constitutional foundation because it is neither explicitly mentioned in the text nor “deeply rooted in the Nation’s history and traditions.”
Those despairing about this draft opinion should remember that the courts do not monopolize abortion politics. Congress could fix the problems such a decision would cause. It can pass a statute guaranteeing the right to abortion, thereby codifying Roe. Such a law would be quite hard for the court to overturn. The obvious rejoinder is that such a statute, while supported by a majority in the House and Senate, could not overcome a filibuster. But there is no reason to maintain a filibuster here. Republicans already went “nuclear” and scrapped the filibuster for Supreme Court nominees (beginning with Neil M. Gorsuch). If the Senate can skip the filibuster to confirm three justices who would not only vote to overrule Roe but decide hundreds of other significant matters, it certainly should be able to skip it for the relatively more minor task of creating a legislative fix for a single one of their decisions. The effort could even be bipartisan. Certainly senators who voted for nominees believing that they would uphold Roe v. Wade as settled precedent — Sen. Susan Collins (R-Maine) comes to mind — should be doing everything possible to make such legislation the law of the land. (Collins, however, said this week that she would not vote for the bill Democrats are pushing that would codify Roe, arguing that it does not provide sufficient “conscience” protections for antiabortion health providers. Those objections could be accommodated.)
But while such legislation could fix the abortion restrictions, it couldn’t undo the legal reasoning in the draft opinion, which will fester and reach other cases. The court’s test of “deeply rooted” traditions could now be used to attack Griswold and much more. The draft opinion is not unaware of this and indeed protests too much in response: “We emphasize that our decision concerns the constitutional right to abortion and no other right,” Justice Samuel Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” He reasons that other statutes do not involve the destruction of “fetal life,” so the facts of other cases would be different. That’s true insofar as it goes. Yes, a case on, say, contraception would involve different facts, but different cases always involve different facts; the application of the same legal principles to different facts is an essential part of how law works. And here, the legal principle adopted by the draft opinion — whether rights are historically grounded in the traditions of the American people — is unfortunately a road map to overruling Griswold, because it calls into question the right to privacy. That paves the way, in theory, for states to ban the use of birth control.
Marriage equality, guaranteed by the 2015 decision Obergefell v. Hodges (written by Republican appointee Anthony M. Kennedy), is now also threatened. There is obviously no tradition of same-sex marriage per se, but Kennedy’s brilliant opinion allowed the court to reach deeper into the American tradition of liberty to generalize about the rights and freedoms at stake. The same move made in the draft opinion about abortion, however, could be used to overturn Obergefell. If that were to happen, same-sex marriage would again be illegal in the many states that still have bans on their books (including Indiana, which rejected an effort to remove its ban in 2020).
Of course, it is possible that the court won’t do any of this. But here’s a disconcerting fact: Of the Supreme Court decisions that conservatives have been agitating to overturn, Roe was the hardest target. And yet the court started with it. In doing so, it also had to reckon with the many other abortion cases at the court since Roe. Most notably, in 1992′s Planned Parenthood v. Casey, the Supreme Court, in an opinion written by three Republican appointees (Justices Sandra Day O’Connor, Kennedy and David Souter), said that even if Roe was problematic, it was the law of the land and the court’s credibility with the American people depended on maintaining it. The justices said that social expectations had crystallized around the decision and that generations of Americans had come to rely on Roe, and so it should not be overruled.
These words and principles govern us no longer. And if five justices can toss away such considerations when it comes to Roe, we all have to ask: What’s next?